Sexually Harassed At Work: What To Do
If You’ve Been Sexually Harassed At Work, What To Do (And What Not To Do!)
written by Patricia Barasch
It’s hard to listen to the news these days without hearing about sexual harassment in the workplace. Unfortunately, it seems to be a fact of workplace life reaching all types of job sectors and industries and implicating all levels of employees. While employers are legally obligated to maintain policies prohibiting harassment in the workplace, and are further obligated to take prompt and effective remedial action in response to an employee’s complaint of harassment, harassment in the workplace continues to rear its ugly head. In addressing sexual harassment occurring in the workplace, there are important considerations for employees to be aware of which will be discussed below.
These considerations are the result of a 2015 ruling by the New Jersey Supreme Court in regard to hostile work environment sexual harassment cases alleging supervisor harassment brought under the New Jersey Law Against Discrimination. In Aguas v. State of New Jersey (2015), the New Jersey Supreme Court adopted the test previously established by the Supreme Court of the United States in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton for imposing liability on employers for a supervisor’s sexual harassment and held that an employer can rely upon the company’s anti-harassment policy as an “affirmative defense” to an employee’s claims of negligence or vicarious liability brought under the LAD. In other words, employers may now potentially avoid all liability for a supervisor’s sexual harassment when the complaining employee suffers no tangible adverse employment action, by asserting that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
In light of New Jersey Supreme Court’s ruling in Aguas, what should you do (and not do) if you find yourself in a situation where you have been subjected to sexual harassment and/or a hostile environment in the workplace? Here are some important considerations to be aware of:
- Document any harassment that occurs;
- Get a copy of your employer’s policy prohibiting discrimination and harassment in the workplace and ascertain the procedure to follow to file a complaint of harassment and make sure you follow it;
- If the employer’s policy is not readily accessible, make a request for it in writing;
- Make your complaint in writing. You may also complain verbally but be sure to also make your complaint in writing and keep a copy of it for your own records;
- Be specific in your complaint about the harassment to which you have been subjected;
- If the employer requests that you participate in an investigation following your complaint, including an interview, you should agree to participate. Do not refuse to participate on the grounds that you provided all the information in your complaint. Under the law, employers have an obligation to conduct a prompt and effective investigation, and your refusal to participate will likely be held against you;
- If there are witnesses to the harassment, be sure to provide the names to your employer. Again, it is best to provide any such information in writing and keep copies of any such information provided. Likewise, if you have documentary evidence of the harassment (e.g., emails you received, or written notes left for you, etc.), provide such information to your employer and keep copies of any information provided. In providing documentary evidence, be sure not to access “confidential” information and/or information to which you do not have access in the performance of your job;
- Following your complaint, keep notes about the employer’s investigation, as well as any retaliatory action following your complaint. If you are subjected to retaliation, make an additional written complaint of retaliation using the employer’s designated policy and procedure to do so;
- Don’t quit your job or resign your position. This is hardly ever a good idea, and if you do quit or resign, you are making it much more difficult to bring any kind of legal action to obtain relief. In addition, if you quit, you are putting your eligibility for benefits under New Jersey’s Unemployment laws in jeopardy;
- If your employer doesn’t take prompt and effective action to address your complaint of harassment and/or remedy the situation, obtain legal advice. You have the right to work in an environment free from sexual harassment, and an employer is obligated by law to take prompt and effective action to both prevent and remedy harassment.
If you believe you have been the victim of workplace sexual harassment and are concerned that your employer hasn’t taken prompt and effective action to address your concerns, feel free to contact the experienced New Jersey workplace sexual harassment lawyers at Schall & Barasch LLC.
* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at www.bestlawfirms.usnews.com/methodology.aspx.
** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at www.avvo.com/support/avvo_rating.
*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at www.bestlawyers.com/about/MethodologyBasic.aspx.
**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.
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